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Will my son be sent home

immigration lawyer

My child got sent home sick, Now what?

Will my son be sent back home?


Question: I am a lawful permanent resident and have petitioned my wife and son many years ago.
Just recently I found out about the V Visa
which allowed my wife and son to come to the United States and reside with me
while we are waiting for the visa number to become current.
However, my son is going to be 21 years old in two months.
Is there anything I can do?

Answer: Actually, there was just a case that came out in the Ninth Circuit Court of Appeal.

Immigration Lawyer

In this case, the court held that Immigration regulations terminating V nonimmigrant status the day before the visa holder’s 21st birthday,
Was contrary to Congress’ intent to reunite families when it enacted the Legal Immigration Family Equity Act (“LIFE Act”).
As background: the LIFE Act added a new nonimmigrant visa category, INA § 101(a)(15)(V).
Including employment authorization.
Whichever comes first.”
Upon termination of V nonimmigrant status,
The individual is no longer eligible for employment authorization.


In this Ninth Circuit case, the government argued that,
The court should allow the USCIS regulations to stand.
The court ultimately disagreed,
Stating “we do not owe deference…to agency regulations if they construe a statute in a way that is contrary to congressional intent or that frustrates congressional policy.”
The court concluded that Congress did not directly speak to the issue of whether a person could lose V status by turning 21.
Thus, the court concluded that Congress’ intent was ambiguous.

Immigration Lawyer

immigration lawyer

The court noted that the LIFE Act provided three ways that V visa status may terminate and that aging-out was not one of those ways.
The presumption is that Congress purposely excluded all other possible means, such as aging-out.”
(1) statements in the congressional record regarding another LIFE Act provision (adjustment of status under INA § 245(i));
Thus, the court invalidated the age-out provisions of the V Visa.
Thus, your son can legally stay with you under the V Visa even though he will be older than 21 years of age.
This is a significant victory for immigrants as it shows the power of the family unit and how Immigration cannot simply make arbitrary regulations.